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Draft—Do Not Cite Without Permission of the Author Draft—Do not cite without permission of the author Chapter I: The Contradictions of American Democracy in the Antebellum Years: The Inadequacy of the Constitution; The Rise of the Anti-Slavery and Woman’s Rights Movements Between 1815 and 1860, the new nation consolidated its identity and expanded its boundaries.1 This was a time of economic growth and internal improvements.2 The antebellum era witnessed a “transformation” of the private law of torts, contracts, property, and commercial law that has been said to have unleashed “emergent entrepreneurial and commercial groups to win a disproportionate share of wealth and power in American society,” all in the name of promoting economic growth.3 These years also witnessed significant democratization of the American polity. Even though the new nation’s charter incorporated the revolutionary principle of “popular sovereignty” or the consent of the governed, its political structures and practices had been designed to be far from democratic in the beginning.4 After 1815, however, the spreading trend in the states toward universal white adult male suffrage accelerated significantly, culminating with the election of Andrew Jackson in 1828.5 The people and party operatives who put this man of humble origins into the White House poured into Washington D.C. for his inauguration. “Never before had an American ceremony of state turned into such a democratic and charismatic spectacle.”6 From the perspective of divisions between the social classes, Jacksonianism represented important gains for egalitarian thinking in politics.7 The subsequent decades before the Civil War saw a flowering of reform ferment in the United States. The progress of “The Second Great Awakening” transformed the spiritual lives of many Americans (both inside and outside of mainstream churches) through camp meeting revivals and other personal religious experiences.8 Evangelicalism and the post-millenarian 1 January 5, 2011 ch 1 attitudes that it encouraged influenced many, especially women of the middle class, to join in a variety of movements to bring about all sorts of reform.9 The rate of literacy and education for white women rose significantly during these years.10 Many such women turned their attention to benevolent campaigns to improve manners and mores, to enforce Sabbatarianism and to encourage temperance, to fight for prison reform and to struggle against Indian removal and against slavery, among other causes. Most middle-class women no doubt conceived of their expanded activities as lying well within the accepted female sphere of domesticity. However, at least some American women followed a reform trajectory that led them from anti-slavery advocacy to the founding of the first woman’s rights movement in the United States.11 There was an underside to the economic growth, territorial expansion, and democratization of the antebellum years. Concurrent with, and concomitant to, the democratizing of politics in this era, free black men in the North lost their votes, as did the few women of property who once had enjoyed limited electoral privileges in New Jersey.12 Moreover, white supremacy over slaves, Indian tribes, and Mexicans was extended.13 Among other Indian removals, the Cherokee were driven out of Georgia and the Seminole out of Florida to accommodate white expansion.14 Texians determined to become part of the United States, in part because they feared that Mexico would not let them keep their slaves, engineered a revolution against Mexico.15 After a brief period of independence, Texians achieved the hoped-for annexation to the United States of America in 1845. Following in the wake of annexation, the Mexican-American War of 1846-1848 led to the Mexican cession 16and enormous new territorial gains for the United States, setting the scene for additional struggles over the expansion of slavery. 2 January 5, 2011 ch 1 Along with the new nation that it represented, the Constitution was to be severely tested at this time by the inherent contradictions between popular consent, on the one hand, and slavery and white supremacy on the other. The compromises about slavery both contained within the original Constitution, and struck by Congress and the U.S. Supreme Court thereafter, failed to contain the growing tensions. Among others, Thomas Jefferson had assumed that there would be a peaceful resolution of the issue though the gradual fading away of slavery.17 But two developments ensured that conflicts over slavery would continue. First, instead of becoming more marginal economically, slavery flourished, especially with the invention of the cotton gin and the opening of new territories in the west to a plantation economy.18 Even as internal improvements and legal changes nurtured a developing market economy in one section of the country, the political economy of slavery became ever more important to the fate of another section, driving their interests further apart.19 Second, continued territorial expansion ensured that these sectional conflicts took political form over the balance of power in Congress. Each time a new State was proposed for admission to the Union, there was a battle over whether it would come in as “slave” or “free.” Each time, new compromises had to be struck, such as the Missouri Compromise of 1820 or the Kansas-Nebraska Acts in 1854.20 In the long run, however, all these failed and it took a civil war to hold the Union together against the forces of disintegration.21 The inherent contradictions deepened in the 1840s as two social justice movements began to raise challenges to the prevailing systems of legal subordination. The first campaign to develop was the abolitionist movement, which rejected the practicality or morality of gradualism (the idea that slavery would fade away) and instead demanded “immediate” emancipation. While captive Africans and their American descendants had never had been purely passive victims of the 3 January 5, 2011 ch 1 slave system,22 by the early 1830s there was a new element of resistance evident. “If any single event may be said to have triggered the Negro revolt,” it was the publication by a free black man, David Walker, of his Appeal to the Coloured Citizens of the World in September, 1829.23 In addition, the radical and pacifist white reformer William Lloyd Garrison started publishing his anti-slavery newspaper, The Liberator,24 in 1831 and the American Anti-Slavery Society was founded at the very end of 1832.25 The anti-slavery movement gathered force throughout the 1830s. A second social justice movement emerged from abolitionist ranks. When female reformers sought to play a “public” role in the anti-slavery crusade and were turned aside in the name of keeping women in their proper sphere, they developed a “woman’s rights” agenda and established a national movement. The new analysis condemned the consignment of women by law and by society to a separate and a subordinate sphere of life. In 1848, in the first of a series and perhaps the most well-known of the woman’s rights conventions, activists met in Seneca Falls, New York and voted to issue a “Declaration of Sentiments” patterned on the Declaration of Independence.26 The document condemned the many ways that law and society subordinated women to men. It demanded redress and even suffrage for women.27 In this era of economic growth and territorial expansion, democratization and the spread of slavery, reform enthusiasm and tension in the Union, the Supreme Court was called upon to decide cases that helped define constitutional ideas about sovereignty, dependency, citizenship, liberty and property, manhood and womanliness. As interpreted by the Supreme Court, however, the Constitution proved inadequate to the challenges of the antebellum years. It could not contain the spread of white supremacy and it had nothing to offer with respect to legal wrongs against 4 January 5, 2011 ch 1 women. In the period leading up to the Civil War, great changes were brewing on the ground. But they were not promoted by constitutional decision-making in the Court. At best, the Constitution was not up to the challenge or seemed to be beside the point; at worst, it actually deepened the contradictions and the tension. It was not until after civil war exacted a huge toll on the nation that the demand for reconstruction led to a new revolution and the redesign of significant parts of the original constitutional framework.28 Jacksonian Democracy Andrew Jackson was elected the seventh President of the United States in 1828 and served for two terms, but the entire period from 1815 to 1848 (including the administration of Jackson’s protege, Martin Van Buren) is often called the Jacksonian era.29 An American military hero and the first westerner to hold the high Executive office, Jackson was a self-made man of humble origins.30 He has been said to represent democracy in two senses: He was the founder of the Democracy, or Democratic Party that has had a continuous existence to today;31 he also was a symbol of the spread of popular political participation to the property-less “common man.” 32 Jackson’s election marked the culmination of a thirty-year trend in the states toward more widespread voting privileges. 33 “By 1828, the principle of universal white adult male suffrage had all but triumphed–and accompanying that victory, much of the old politics of deference still left over from the Revolutionary era had collapsed.” 34 Jackson’s victory was stunning. He garnered 68% of the electoral college vote, unlike in 1824 when a stalemate
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